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In re Compensation of Mandes

Court of Appeals of Oregon

December 6, 2017

In the Matter of the Compensation of Katherine Mandes, Claimant. Katherine MANDES, Petitioner,
v.
LIBERTY MUTUAL HOLDINGS-LIBERTY MUTUAL INSURANCE, Respondent.

          Argued and submitted October 25, 2016

         Workers' Compensation Board 1304012; .

          Julene M. Quinn argued the cause and fled the briefs for petitioner.

          Chad Kosieracki argued the cause for respondent. On the brief were Steven T. Maher and Maher & Tolleson, LLC.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Powers, Judge. [*]

         Case Summary: Claimant seeks review of an order of the Workers' Compensation Board holding that injuries sustained during a paid break are not compensable under the "going and coming" rule. Claimant contends that her injuries occurred in the course and scope of her employment while she was engaged in an activity for her personal comfort and that the "going and coming" rule therefore is inapplicable. Held: The board erred in determining that claimant's injury was not compensable under the "going and coming" rule without frst addressing claimant's contention that the injury occurred while she was engaged in an activity for her personal comfort.

         [289 Or. 269]

          POWERS, JUDGE.

         Claimant seeks judicial review of an order of the Workers' Compensation Board holding that injuries she sustained during a paid break are not compensable. We review the board's order for substantial evidence and errors of law. ORS 183.482(8)(a), (c). Because we conclude that the board applied an incorrect legal analysis in deciding that the claim is not compensable, we reverse the board's order and remand for reconsideration.

         The facts relevant to our review are largely undisputed. Claimant, who works for employer Liberty Mutual as a nurse case manager, used her paid 15-minute break to take a walk around the building with coworkers. As she returned to the building, she tripped and fell on an uneven sidewalk adjacent to employer's parking lot, sustaining multiple injuries.

         Employer denied claimant's claim for workers' compensation benefits, and the board ultimately upheld the denial, reasoning that claimant's injuries did not occur in the course and scope of her employment. Citing this court's opinion in Enterprise Rent-A-Car Co. of Oregon v. Frazer, 252 Or.App. 726, 730-31, 289 P.3d 277 (2012), rev den, 353 Or. 428 (2013), the board reasoned that, because claimant was returning to work at the time of her injury but was not on employer's premises or on premises within employer's control, the "going and coming" rule applied. The going and coming rule provides generally that injuries sustained while an employee is travelling to or from work do not occur in the course of employment and are not compensable. Krushwitz v. McDonald's Restaurants, 323 Or. 520, 526, 919 P.2d 465 (1996). There are exceptions to the going and coming rule, including an exception for injuries that occur in an employer-controlled parking lot. See Frazer v. Enterprise Rent-A-Car Co. of Oreson. 278 Or.App. 409, 416, 374 P.3d 1003 (2016) (discussing parking lot exception). In applying the going and coming rule here, the board concluded that the "parking lot" exception did not apply, because employer did not have control of the premises where claimant fell. Therefore, the board concluded, claimant's injury did not occur in the course of her employment. [289 Or. 270]

         Claimant had argued to the board that her injuries arose out of and in the course and scope of her work under the "personal comfort" doctrine. Two dissenting board members agreed. Under the personal comfort doctrine, a worker remains in the course and scope of employment during personal comfort activities that are sanctioned by the employer and are incidental to, but not directly involved in, the performance of the appointed task. U.S. Bank v. Pohrman, 272 Or.App. 31, 44-48, 354 P.3d 722, rev den, 358 Or. 70 (2015) (discussing doctrine).

         Off-premises activities that have been found to be within the course and scope of employment under the personal comfort doctrine have included coffee, lunch, or restroom breaks. See Mellis v. McEwen, Hanna, Gisvold, 74 Or.App. 571, 703 P.2d 255, rev den, 300 Or. 249 (1985) (tripping on a leg of a chair while on a 15-minute lunch break); Halfman v. SAIF, 49 Or.App. 23, 29-30, 618 P.2d 1294 (1980) (crossing a street on a break to buy a drink); Jordan v. Western Electric, 1 Or.App. 441, 446-47, 463 P.2d 598 (1970) (slipping on curb while returning from 15-minute coffee break); see also Clark v. U.S. Plywood, 288 Or. 255, 266, 605 P.2d 265 (1980) ("[T]he compensability of on-premises injuries sustained while engaged in activities for the personal comfort of the employee can best be determined by a test which asks: Was the conduct expressly or impliedly allowed by the employer?"); Lex K. Larson, Larson's Workers' Compensation § 21.01 to 21.08 (Matthew Bender rev ed 1998) (collecting cases on "personal comfort doctrine").

         Such personal comfort activities, if allowed or acquiesced in by the employer, are deemed to have a sufficient connection to the employment because they are "'helpful to the employer in that they aid in efficient performance by the employee.'" Jordan, 1 Or.App. at 446 (quoting with approval the California Supreme Court's opinion in State Comp. Insurance Fund v. Workmen's Comp. App. Bd. (Cardoza),67 Cal.2d 925, 928, 434 P.2d 619 (1967) (injuries sustained while swimming in a canal to cool off during a coffee break held compensable)). In Jordan, we set out seven factors to be considered in determining whether a worker remains within the course and scope of employment at the time of the injury while ...


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